There’s no easy political path out of pipeline deadlock

Trans Mountain issues lie outside the scope of the notwithstanding clause’s powers

That was some trick from Ontario Premier Doug Ford.

He invoked the notwithstanding clause to overturn a court ruling against his effort to dismantle Toronto council.

Could Alberta or Ottawa use the same constitutional power to overturn the Federal Court of Appeal’s ruling against the Trans Mountain pipeline?

Some readers hope so. Just apply the notwithstanding rule, the thinking goes, and free Trans Mountain from constitutional shackles.

It won’t work. No chance. Notwithstanding applies only to certain sections of the Charter of Rights and Freedoms. It allows provinces or Ottawa to exempt a law from the Charter, for a period of five years, after which the power must either lapse or be renewed.

In the pipeline case, the Federal Court of Appeal focused largely on section 35, regarding Indigenous rights.

“Those matters are outside the Charter of Rights and Freedoms; therefore there’s no way you can apply the notwithstanding clause,” says Dr. Nigel Bankes, resource law specialist at the University of Calgary.

The judge’s ruling in the Ontario case focused on free speech, which is clearly a subject for notwithstanding.

Bankes modestly says he isn’t well versed in this specific area, but his conclusion matches just about everyone else’s.

That’s why we haven’t heard any notwithstanding talk from Ottawa or the Alberta government.

One irony is that the notwithstanding clause is generally credited to the late Peter Lougheed, who was Alberta premier during the constitutional talks of 198082.

Like all the western premiers, he was trying to stop the imposition of federal powers that would erode provincial authority, perhaps retroactively.

The premiers succeeded so well that the rules now backfire on Alberta. Just when the province needs overriding federal authority, it turns out to be non-existent.

There appears to be no escape from that pipeline ruling, apart from fulfilling the court’s demands or appealing to the Supreme Court.

Prime Minister Justin Trudeau has consistently refused to declare the pipeline a work for the general advantage of Canada.

That’s surely because it would again be challenged as a violation of Section 35 on Indigenous rights, another creation of the 1982 Constitution Act.

Ford’s move was dramatic, not to mention undemocratic. But he can hardly be accused of violating the constitution for invoking a part of the constitution.

Ontario media and politicians hate what he’s doing. Without doubt, this guy is a Trump-era disrupter.

But he also reflects real frustration with courts that block political decisions, even those of vast economic significance.

Today, that feeling may be strongest in Alberta.

A few months ago the pipeline battle was purely political. The B.C. government vowed to thwart the project. Alberta responded with a wine ban and legislation to cut oil supply.

That seemed to be working. Public support for the pipeline rose. One court after another ruled in favour of the project in various cases — 16 straight times, in fact.

Then came the big Federal Court of Appeal decision, long delayed and strangely timed to coincide with the very date of Ottawa’s pipeline purchase.

That decision, too, rejected almost every complaint about Trans Mountain.

But the three judges agreed with two objections — failure on Indigenous consultation and marine ecology.

On that basis, the three judges took the most draconian action possible. They overturned a federal cabinet order and stopped the project dead.

But the real failure here is not judicial at all. It’s political.

Trudeau’s government has not defined in law exactly what is meant by a First Nations veto, or even acceptable consultation.

Judges often plead for legislated definitions. Without clear guidelines, they find themselves setting precedents the lawmakers never wanted.

Bankes says Ottawa’s new Bill C-69, which the Liberals claim will make approvals faster and easier to obtain, still contains no such essential definitions.

Until those exist, every project will be subject to arbitrary shutdown.

Maybe we should hope it happens to a hydro project in Quebec. That would get them moving.